As you know, both Federal and New Jersey constitutional law as well as the New Jersey Court Rules require the State to disclose exculpatory and impeachment evidence to defense counsel in
the course of a criminal prosecution, under what is known as the Brady/Giglio doctrine. Although the law in this area is well-established and has not significantly changed, now more than ever it is imperative that law enforcement comply fully and promptly with the law’s requirements. Doing so is not only required by law, but serves to build trust in law enforcement and the legal system with the people that system serves and protects.
Accordingly, it is imperative that each assistant prosecutor timely disclose any and all material required by Brady/Giglio. The following are examples of information that may potentially be discoverable under the Brady/Giglio doctrine, specifically as it applies to law enforcement witnesses:
- A sustained finding that an investigative employee has filed a false report or submitted a false certification in any criminal, administrative, employment, financial , or insurance matter in his or her professional or personal life;
- A sustained finding that an investigative employee was untruthful or has demonstrated a lack of candor;
- A pending criminal charge or conviction of any crime, disorderly persons, petty disorderly persons, municipal ordinance, or driving while intoxicated matter;
- A sustained finding that undermines or contradicts an investigative employee’s educational achievements or qualifications as an expert witness;
- A finding of fact by a judicial authority or administrative tribunal that is known to the employee’s agency, which concludes a finding that the investigative employee was intentionally untruthful in a matter, either verbally or in writing;
- A sustained finding, or judicial finding, that an investigative employee intentionally mishandled or destroyed evidence;
- Any allegation of misconduct bearing upon truthfulness, bias, or integrity that is the subject of a pending investigation; Information that may be used to suggest that the investigative employee is biased for or against a defendant or witness in the case;
- Information that may be used to suggest that the investigative employee is biased for or against a defendant or witness in the case;
- Information that may be used to suggest that an investigative employee is biased against a particular class of people, for example, based on a person’s gender, gender identity, race, or ethnic group.
Since the advent of the Brady/Giglio doctrine, law enforcement agencies throughout the county have grown in both size and complexity. In order to ensure that this Office continues to meet its
obligations, we are presently assessing our existing procedures. So that assistant prosecutors have formal guidance they can rely on during the assessment process, the following policy, which incorporates best practices reflected in the Attorney General’s policy on the Disclosure of Exculpatory and Impeachment Evidence in Criminal Cases, adopted on June 18, 2019, and the Attorney General’s Directive Establishing County Policies to Comply with Brady v. Maryland and Giglio v. United States, issued on December 4, 2019 (Directive No. 2019-6), is adopted effective immediately:
Responsibility for Compliance with Brady/Giglio
The assistant prosecutor assigned to each case has the primary obligation of identifying and disclosing all necessary Brady/Giglio material. In order that each assistant prosecutor may be certain that they are aware of all known Brady/Giglio material as it applies to their case, the following two procedures must be followed in every case.
1. Performing a Brady/Giglio Check
Certain types of Brady/Giglio material may exist in the personnel or internal affairs records of law enforcement personnel. Such records must be maintained confidentially. However, because that confidentially must give way to the State’s discovery obligations, the following check should be performed in each case:
- Before extending a plea offer, the assigned assigned prosecutor must identify the names of any police officer or other law enforcement employee who:
- Has written a report;
- Has signed an affidavit or certification;
- Has testified under oath; or
- Will reasonably be expected to testify at a future grand jury proceeding, motion, or trial of the matter.
- In cooperation with their unit supervisor and the Giglio liaison, the case assistant prosecutor will determine whether potential Brady/Giglio material may exist for each of the identified individuals.
- If no known Brady/Giglio material exists for any of the identified persons, a plea offer may be extended.
- If potential Brady/Giglio information is determined to exist, the case assistant prosecutor will immediately deliver the case file to the Giglio liaison, who will assess whether potential Brady/Giglio material exists, which is applicable to the present case. In that case, the assistant prosecutor will refrain from offering a plea until any potential Brady/Giglio material may be fully evaluated.
2. Conducting the “Candid Conversation”
The “candid conversation” process, now used by both the Department of Justice and the New Jersey Attorney General’s Office, recognizes that not all exculpatory material will be recorded in an officer’s internal affairs or personnel records. Indeed, the vast majority of exculpatory information is case and situation specific. For example, a particular officer may have a personal history with a defendant or a defendant’s family. That history may have been in no way improper, yet may have led to negative feelings that could be probative of bias-e.g. where an officer was previously involved in a business arrangement with a defendant’s family that has since gone bad. Such information must be turned over to the defense in a case involving that defendant.
Therefore, before an officer testifies before the grand jury or at a trial or motion, the case assistant prosecutor must engage the officer in a “candid conversation” designed to elicit potential Brady/Giglio material. The conversation may be conducted by telephone or in person, allowing sufficient time for the disclosure of any exculpatory material that may be identified. The “candid conversation” should be conducted as follows:
- The case assistant prosecutor should make contact with each officer reasonably expected to testify at any proceeding in the case.
- On making contact, the case assistant prosecutor should ask the officer each of the questions in the attached “Candid Conversation Guide” and record the answer given on the form.
- The case assistant prosecutor should then read the officer the advisement at the bottom of the guide and fill out the information required.
- The completed Candid Conversation Guide should then be incorporated into the case file as non-discoverable attorney work product.
- If the answer to each of the listed questions is NO, the candid conversation process is complete.
- If the officer answers YES or UNCERTAIN to any of the questions, the case assistant prosecutor should immediately contact their unit supervisor or the Giglio liaison to determine how to proceed.
Disclosure of Exculpatory Information
The sole purpose of this policy is to ensure that each assistant prosecutor possesses all potentially exculpatory material. This policy does not address the actual disclosure of exculpatory information. If potentially exculpatory information is discovered through this process, it is the responsibility of the assistant prosecutor assigned to the case, working with their unit supervisor, to consult with the Giglio liaison to determine what information must be disclosed, how it is to be disclosed, and whether a protective order or in camera review should be sought. The Legal Chief of the Investigative Units serves as the Giglio liaison for our office.
Continuing Obligation to Screen Potential Witnesses
As with all discovery obligations, the obligation to disclose Brady/Giglio material is an ongoing one. Accordingly, any time that an assistant prosecutor working on the file identifies another
employee of a law enforcement agency likely to testify at any proceeding in the matter the procedures described herein must be applied to that person.
Additionally, potential witnesses who have already undergone the candid conversation should be reminded of their continuing obligation to advise the assistant prosecutors of any changes to their
original answers prior to every phase of the prosecution that might require their sworn testimony.
Determinations as to whether certain information is discoverable under Brady/Giglio is often case-specific. As such, though we often work with the same officers, a candid Brady/Giglio
conversation should occur with respect to every individual case.
Brady/Giglio Material as it Relates to Civilian Witnesses
This policy primarily focuses on our obligations as they relate to law enforcement witnesses, but we of course still have obligations to disclose Brady/Giglio material relating to civilian witnesses. Accordingly, the State is obligated to disclose known evidence of general or specific bias, past instance of dishonesty, prior criminal convictions, under N JR.E. 609, prior inconsistent statements, under N.JR.E. 613, and any other exculpatory evidence.
Although civilian witnesses are not simply an extension of the State, in order to ensure that every case prosecuted by this Office is handled fairly, openly, and in accordance with all applicable law, the following procedures will be followed for all civilian witnesses:
- Working with the assigned assistant prosecutor as necessary, the assigned investigative staff will generate a criminal history report for every civilian witness who gave a statement during the investigation or who is reasonably likely to testify at a future proceeding in the matter, for review by the assistant prosecutor.
- In preparing to elicit sworn testimony of any kind from a civilian witness, the assistant prosecutor will question the witness to determine whether potentially exculpatory evidence exists. If the procedures described above identify potentially exculpatory evidence, the assistant prosecutor will consult with their unit supervisor to determine what information is subject to disclosure and whether an in camera review or protective order will be sought.
If the procedures described above identify potentially exculpatory evidence, the assistant prosecutor will consult with their unit supervisor to determine what information is subject to disclosure and whether an in camera review or protective order will be sought